First They Banned Pooh, Then Tigger. “And Then They Came For Peppa Pig.”

First They Banned Pooh, Then Tigger. “And Then They Came For Peppa Pig.”

Peppa Pig is a hit British cartoon series, aimed at pre-schoolers, about a little pig who has adventures such as “Happy Birthday” with her family and friends. Now she has been banned in China.

Why would the Chinese government ban an animated pig? Because she was becoming a viral hit among shehuiren, who can be described as “people who run counter to the mainstream values and are usually poorly educated with no stable job. They are unruly slackers roaming around and the antithesis of the young generation the Party tries to cultivate.” In other words, very much like the descriptions of many young Americans of the past and today.

Last year, the Chinese government banned Winnie the Pooh, at least in part because the animated bear was used as a proxy for Chinese strongman Xi Jinping. When the Chinese leader met with then-President Barack Obama, resulting in portrayals of Pooh and Tigger, Pooh’s tiger friend, the Chinese government banned Tigger too.

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PHOTO: Reuters, via telegraph.uk.co.

With Facebook and Google trying to figure out what and how to censor objectionable speech on social media, perhaps this censorship trend will spread to the U.S. Actually, the Chinese censorship campaign already has, with Marriott Corporation firing an employee who apparently accidentally “liked” a pro-Tibet social media posting, and the U.S. State Department warning U.S. Citizens who travel to China that they can be detained or deported for private messages critical of the ruling Communist Party.

And Congress is taking notice.

China is not alone. Russia has just banned the comedy film “The Death of Stalin,” the first such ban since the fall of the Soviet Union. But the Russian Ministry of Culture also delayed Paddington 2, another children’s tale with a 100% rating on the ratings site Rotten Tomatoes (though that delay was nationalism, apparently to promote a Russian-made film, as opposed to political criticism).

Pavel Pozhigailo, a member of ministry of culture’s advisory council described the film as “blasphemous”. “We don’t have to be a country of masochists,” he said. “This is insulting our national symbols. The trailer goes out using our national anthem and it shows our great war marshals as … I don’t know how else to put it … idiots.”

Perhaps Google, Facebook and other media companies could review these developments before instituting or expanding their own censorship programs against speech the U.S. government might find uncomfortable, “blasphemous,” or “insulting?” There’s just no limit when censorship expands to include the kind of popular advocacy, even though this sort of free(er) expression was one of the key elements in the downfall of repressive regimes such as the Soviet Union.

It may not violate the First Amendment (which applies only to American governments), but it’s still censorship when private companies restrict or discourage advocacy.

Vox: Time for Liberals to Get Over Citizens United

Vox: Time for Liberals to Get Over Citizens United

It takes courage to buck the orthodoxy of your foundational audience, so it’s always nice in these polarized times to see a major publication like Vox offer a somewhat dissenting view from liberal orthodoxy on Citizens United and other progressive dog-whistles on campaign finance reform.  Today Scott Castleton writes: “Repealing the controversial decision is a pipe dream. And there are more promising avenues for campaign-finance reform.”

In 2017, the commissioner of the Federal Election Commission resigned, claiming “since the Supreme Court’s Citizens United decision, our political campaigns have been awash in unlimited, often dark money.” This was the animating sentiment of Bernie Sanders’s 2016 campaign for president; he even went so far as to claim that billionaires are simply “buying elections.”

This idea has given rise to a new liberal battle cry: Repeal Citizens United! Unfortunately, that tactic is naive and misguided, and relies on a misunderstanding of the law and politics surrounding the case. …

Let’s put the hated decision into context. The inundation of elections with private cash is not the result of Citizens but rather was facilitated by the 1976 decision Buckley v. Valeo. That case established the legal framework sanctioning billions of dollars of independent private campaign spending. In it, the Court ruled that limits on campaign donations — direct donations to candidates — are constitutional but said it was unconstitutional to limit non-donation expenditures, such as independently funded advertisements.

 Such independent spending — which cannot be coordinated with candidates, according to the Court — was protected under the First Amendment as not just speech but political speech. The idea is that money is a necessary instrument for supporting a political candidate, whether it’s paying for yard signs or taking out an ad in the newspaper.

Not unreasonably, the Court ruled that limitations on independent expenditures would constitute limitations on one’s ability to support a candidate through any number of media. Placing a dollar limit on such expenditures would arbitrarily prevent certain kinds of campaign support simply by the fact of how expensive they are. …

Citizens simply has not had the seismic legal impact that many think. Since Buckley protected money as speech, the only question was whether corporations were legitimate speakers. It may surprise some to hear, but the Court had already answered this question in 1978. In First National Bank of Boston v. Bellotti, the Supreme Court recognized a corporate right to free speech, concluding that the value of speech in the course of political debate does not depend on the identity of the speakerCitizens simply followed the precedent of these two cases.

So when liberals intone that “corporations aren’t people,” thinking they are making a knock-down argument against Citizens, they miss the point. Citizens did not make corporations persons. And corporations do not need to be persons to receive First Amendment protections. Citizens upheld the liberty, provided by Bellotti, of corporations to speak, and they speak under the rules provided by Buckley.

Castleton then suggests that the remedy for “big money” in politics is to encourage small money donations. He uses the example of small money propelling Bernie Sanders’ 2016 presidential campaign to prominence.

Castleton’s arguments are simplistic and often mis-guided, but at least he’s considering what others deem to be immovable dogma: that maybe censorship is not the answer. Just as with other forms of speech, where the correct answer to “bad” speech is more speech, maybe the answer to “the wrong” people spending “too much” money on elections is to help other people to speak their own minds.

There is another point that Castleton misses entirely: the amount of big money in politics is driven almost entirely by advertising costs. That was true in the correlation between the growth of television ad campaigns and the growth of campaign spending. Yet recent research suggests that, past a certain point, the effectiveness of these ads is zero on voter turnout, and one-half of one percent on candidates’ relative shares of the vote. Enough to affect very close campaigns, but not really a dramatic justification of the costly advertising.

In fact, recent presidential campaigns relative spending did not show an effect on the outcome, with the Clinton campaign and her allies outspending the Trump campaign and its allies two-to-one. The more effective campaigns, Obama and Trump, spent less money, and spent more of what they did spend on highly-targeted digital campaigns or similarly-targeted advertising blitzes.

The reason: the old adage of “half your advertising is wasted, but you don’t know which half” no longer applies in this era of rapid and highly-refined ad targeting. As Advertising Age reported: “And, while broadcast TV retained its dominance, the mass media mainstay of political advertising took a big blow from more targetable and data-driven ad options such as cable TV and digital.”

That dollar-driven trend will likely continue. Meaning that the question is not how much money is pouring into campaigns, but how that money is used.

The Noose Around Issue Advocacy Tightens Again Today: Google Ads Will Require “Verification” to Mention or Show A Candidate or Current Officeholder

The Noose Around Issue Advocacy Tightens Again Today: Google Ads Will Require “Verification” to Mention or Show A Candidate or Current Officeholder

Today the noose begins to tighten more around social media issue advocacy. Facebook is not the only platform censoring content; today Google announced a new requirement for advertisers who want to “purchase an election ad” on Google:

As a first step, we’ll now require additional verification for anyone who wants to purchase an election ad on Google in the U.S. and require that advertisers confirm they are a U.S. citizen or lawful permanent residents, as required by law. That means advertisers will have to provide a government-issued ID and other key information. To help people better understand who is paying for an election ad, we’re also requiring that ads incorporate a clear disclosure of who is paying for it.

Google says its version does not go as far as Facebook’s: it doesn’t also cover “issue ads,” a slippery term not entirely defined by Facebook that can mean almost anything depending on who’s speaking. But Google will likely do so in the near future, depending on its conversations with third-parties: “As we learn from these changes and our continued engagement with leaders and experts in the field, we’ll work to improve transparency of political issue ads and expand our coverage to a wider range of elections.”

Axios has more. For example:

Advertisers can go through the verification process starting at the end of May, and Google will start enforcing the new rules on July 10, the company said.

The new requirements will apply to ads featuring candidates for federal office or current officeholders in the United States.

Google will also start requiring these ads to carry a disclosure that says who paid for them.

So even though Google’s new policy says it doesn’t cover issue ads, it probably does. Many issue ads, as defined by the Supreme Court in Wisconsin Right to Life and Internal Revenue Service rules, deal with legislative issues and say things like “Write your Senator” or “Senator Jones Supports S. 123.” One assumes these would be considered “featuring … current officeholders in the United States.”

Thus, Google now restricts issue ads even without saying so. Illustrating again how difficult it is to limit speech, even in the service of some worthy purpose, without collateral damage that would make such a policy unconstitutional if done by a government subject to the First Amendment.

[Update – Reaction to new Google policy:

Jason Torchinsky, a well-known attorney to many politically-active organizations, writes: 

I think under Google’s policy – with the election related labeling – our non profit clients will have a hard time arguing that any of these ads are purely issue advertisements – no matter when they are publicly released – when they will have an “election related” label right on them.
What happens even during the 2018 lame duck session?  No calls to specific members from non profits that won’t do political activity or are near their limits?
Eric Wang, another well-known attorney to many politically-active organizations and a Senior Fellow at the Institute for Free Speech, writes:

So, voters shouldn’t have to be required to show government-issued ID to vote, but speakers should be required to show government-issued ID when talking about election-related topics (whatever that means).

 In the immortal words of the late James Traficant, “Beam me up!”

 

9th Circuit Denies Rehearing En Banc in Montana Contribution Limits Appeal

9th Circuit Denies Rehearing En Banc in Montana Contribution Limits Appeal

It’s been six months since a three-judge panel of the Ninth Circuit Court of Appeals, on a 2-1 vote, upheld Montana’s right to limit campaign contributions. After Citizens United, the only governmental interest strong enough to over-ride the First Amendment is quid pro quo corruption or the appearance of corruption, and the government had to show “objective evidence” of that to justify a limit on speech. See McCutcheon v. FEC, 134 S. Ct. 1434, 1441, 1444–45 (2014); Citizens United v. FEC, 558 U.S. 310, 359 (2010).

The question in Lair was what was “objective evidence” of quid pro quo corruption: was evidence about lobbying or campaign contributions enough to show corruption, even though the Supreme Court held in Citizens United and McCutcheon that “ingratiation” or “access” was not corruption or its appearance? For example, Chief Justice Roberts wrote in McCutcheon:

We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access . . . are not corruption.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 360 (2010). They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.

The original panel decision last October ruled that, to prove “objective evidence” of corruption, Montana only had to show objective evidence of lobbying activity or campaign contributions. Today, the entire Court of Appeals refused to rehear the case en banc.

There was a dissent by five judges, written by Judge Sandra Ikuta and a concurrence with the denial by two. Judge Ikuta’s dissent stressed that the cases on which the original panel majority relied were handed down before recent Supreme Court cases like McCutcheon and Citizens United. The concurrence, written by Judges Raymond Fisher and Mary Murguia, argued that the original panel had respected the newer Supreme Court precedents in its decision.

The denial’s dissent and concurrence have actually set up a set of very timely and important questions for the Supreme Court. Professor Richard Hasen, host of the Election Law Blog, has already posted about the denial of rehearing. Hasen, who has defended contribution limits in the past, believes that the dissents and concurrence have identified an issue that the Supreme Court might likely choose to review:

Judge Ikuta’s dissent hits on an unresolved question. There are a number of campaign contribution cases, such as Shrink Missouri, decided when the Court was much more deferential to campaign finance regulations and much more willing to let states and localities support contribution limits with a little bit of evidence. No doubt these cases are in tension with McCutcheon, but McCutcheon did not overrrule these cases. And so judges like today divide on what to do.

Nevertheless, Hasen posits that a reversal of the Ninth Circuit’s decision “would almost certainly be to call into question all campaign contribution limits (as indicated in the Judge Fisher/Judge Murguia response).” He doesn’t think the Supreme Court would want to do that much and so might be unlikely to grant certiorari. Hasen does not mention that both Citizens United and McCutcheon are controversial cases, but that is likely behind his thinking.

On the other hand, this is a “clean” case, in the sense that there aren’t a lot of extraneous procedural or other issues that prevent a direct Supreme Court review of the critical legal question. The primary method for convincing the Supreme Court to review a decision is a division (“conflict”) among the circuit courts of appeal. The reason for this is to prevent “forum-shopping” between federal courts when litigants see that decisions in one Circuit are favorable and another not so much. Uniformity of the law across the country is primary among the interests of the Supreme Court.

And the Supreme Court has always been fairly protective of its own decisions, and may choose to use this case to educate lower court judges on this fundamental question. McCutcheon is a particularly recent decision, and, in Part V of its opinion, the Court parsed at some length the corruptive effect of campaigns contributions and lobbying:

The Government argued that there is an opportunity for corruption whenever a large check is given to a legislator, even if the check consists of contributions within the base limits to be appropriately divided among numerous candidates and committees. The aggregate limits, the argument goes, ensure that the check amount does not become too large. That new rationale for the aggregate limits—embraced by the dissent, see post, at 15–17—does not wash. It dangerously broadens the circumscribed definition of quid pro quo corruption articulated in our prior cases, and targets as corruption the general, broad-based support of a political party.

But that’s exactly what the Ninth Circuit decision would do. The Fisher/Murguia concurrence, for example, gave two examples of legislators speculating about large contributions to the Republican Party. Slip op. 25. This is a fundamental divide about the corrupting effect of campaign contributions, just four years after the Supreme Court dealt with the same question in McCutcheon. 

This one might be more important than its focus on the quantum of evidence would indicate. And Jim Bopp, the legendary attorney who brought this case, just messaged me to say that he definitely would ask the Supreme Court to grant cert.